Thursday, January 28, 2010

Although various groups have lobbied for a reporters' shield law in Massachusetts, the state remains without one. But in 2005, just a year after he was elected to the state Senate, U.S. Sen.-elect Scott Brown made an aborted attempt to change that.

As the Senate took up debate on the state budget on May 23, 2005, Brown and former Sen. Brian P. Lees, then the Senate's Republican leader, proposed a reporters' shield law as a budget amendment. But by the end of the first day of budget debate, they had withdrawn the proposed law. No explanation was ever given for why they filed the bill so suddenly or why they withdrew it just as quickly.

Titled the "Free Flow of Information Act," the bill would have prevented the state from compelling a reporter to testify except in narrow circumstances. It would have absolutely prohibited the state from forcing reporters to disclose confidential sources.

Brown never refiled the bill, but he did sign on as a sponsor of a shield bill drafted by a coalition of media representatives and filed in 2007. That bill died in committee. Two Senate shield bills have been filed in the current session of the legislature, SB 1673 and SB 1574. Brown did not sign on as a cosponsor of either.

When last I counted, Massachusetts was one of 16 states without a shield law.

Thursday, January 07, 2010

The Supreme Judicial Court today issued a major ruling for members of the news media, affirming a broad immunity from libel for journalists who report fairly and accurately on official government actions and statements. The opinion in Howell v. Enterprise dismisses a defamation suit brought by a former employee of the town of Abington against The Enterprise newspaper in Brockton after it reported that he had used town computers to access pornography.

In affirming the applicability of the fair report privilege, the opinion by Justice Robert J. Cordy said, "[I]t is important that the privilege be construed liberally and with an eye toward disposing of cases at an early stage of litigation," and that courts should take "an expansive but not unlimited view" of what qualifies as an official action covered by the privilege. Applying these principles, the SJC concluded that the actions at issue in this case qualified as official.

"[W]e conclude that the articles appearing in the Enterprise reported on official actions, proceedings, and statements. The May 11 article reported that Howell had been placed on administrative leave. This was official action. When the Enterprise published articles on the sewer commission hearing (July 20 article), Howell's termination after a sewer commission vote (August 3 article), and the board hearing (August 24 article, August 25 article, September 17 article, September 19 article), it reported on official actions and proceedings. The statements and actions reported plainly implicated official duties and powers, either in the context of the official hearings or in the exercise of official powers as a result of the evidence adduced at those hearings. The Enterprise's reliance on anonymous sources did not destroy the privilege because the sources described official action. Similarly, that some of the actions were not public is not problematic: the actions were 'governmental' and 'formal.'"

Having decided that the news reports covered official matters, the SJC next considered whether the reports were fair and accurate. In making this determination, Justice Cordy wrote, the court must be:

"on alert for two sorts of reporting errors: mistakes in reporting what actually happened (accurate), and liberties taken in reporting the character of what actually happened (fair). We examine both through the lens of the reasonable recipient of the report to gauge the substantiality of the report's accuracy and fairness. This is, for lack of a better formulation, best described as a fairness overlay to the fair and accurate inquiries: is the report sufficiently factually incorrect or sufficiently mischaracterized that the impression on the reader is so unfair to the plaintiff as to warrant placing it outside the privilege? We note this because our task in the present case involves a combination of errors of 'accuracy' and 'fairness.'"

The SJC goes on to conclude that the bulk of the reports met both prongs -- that they were both fair and substantially accurate. One statement in one article was inaccurate, the SJC found, but lacked the requisite element of malice that would be required to prove defamation against Howell as a public figure in his town.

In another notable aspect of today's opinion, the SJC reversed the Appeals Court and said that Howell could not sue for intentional infliction of emotional distress. The Appeals Court had said that he could sue for such damages, even if the news reports were true.

Justice Francis X. Spina dissented to one aspect of today's opinion, saying he would not apply the fair report privilege to a story that provided details of a closed-door town meeting. "The policy behind permitting a governmental body to consider the discipline of a public employee in executive session and to extend the secrecy of those proceedings until the process is concluded, or for other valid reasons, is good government. ... A newspaper that publishes such detail before the governmental body releases its records to the public cannot be said to be acting in its public supervision role."